FILED

United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

February 7, 2014
Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
OVEX GOMEZ-ALVAREZ,

No. 13-3275
(D.C. Nos. 2:11-CR-20011-CM-1 &
2:13-CV-02067-CM)
(D. Kan.)

Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before KELLY, LUCERO, and OBRIEN, Circuit Judges.

Ovex Gomez-Alvarez, a federal prisoner proceeding pro se, seeks a certificate
of appealability (COA) to appeal the district courts denial of his motion under
28 U.S.C. 2255 and its handling of his subsequent Motion to Reconsider
Memorandum and Order. Because Mr. Gomez-Alvarez did not timely file his notice
of appeal from the denial of his 2255 motion, we lack jurisdiction to review that
decision. Regarding the Motion to Reconsider Memorandum and Order, we deny a
COA and dismiss the appeal.

This order is not binding precedent except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Mr. Gomez-Alvarez pleaded guilty to one count of illegal re-entry into the
United States after removal for a conviction of an aggravated felony, in violation of
8 U.S.C. 1326(a) and (b)(2). He filed a timely 2255 motion to vacate, set aside,
or correct his sentence, which the district court denied on July 29, 2013. A separate
judgment was entered on July 30.
On August 29, Mr. Gomez-Alvarez deposited into the prison mail system his
Motion to Reconsider Memorandum and Order, in which he addressed points made
in the denial order and re-argued assertions made in his 2255 motion. Applying the
guidelines this court set forth in Spitznas v. Boone, 464 F.3d 1213, 1216-17 (10th Cir.
2006), on October 15, the district court construed some portions of the motion to
reconsider as a second 2255 motion and other portions as a motion under either
Fed. R. Civ. P. 59(e) or 60(b). It dismissed those portions that were an unauthorized
second 2255 motion. See In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008)
(per curiam). It denied those portions that arguably fell under Rules 59(e) or 60(b),
see Spitznas, 464 F.3d at 1217, and in the alternative, to the extent that those portions
instead might be considered a second 2255 motion, it dismissed them. On
October 28, Mr. Gomez-Alvarez deposited a notice of appeal in the prison mail
system.
Before this court, Mr. Gomez-Alvarez appears to be challenging both the
denial of his 2255 motion and the denial of his motion to reconsider. This court
does not have jurisdiction to consider the denial of the 2255 motion, however,
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because Mr. Gomez-Alvarez did not timely appeal from that decision. See Bowles v.
Russell, 551 U.S. 205, 214 (2007) ([T]he timely filing of a notice of appeal in a civil
case is a jurisdictional requirement.).
Under Fed. R. App. P. 4(a)(1)(B), he had 60 days from the entry of judgment
to appeal from the denial of the 2255 motion. The July 30 judgment made his
deadline Monday, September 30 (extended from the sixtieth day, which fell on
Saturday, September 28). But he did not deposit his notice of appeal in the prison
mail system until October 28.
Under Fed. R. App. P. 4(a)(4)(A), the 60-day appeal period could be tolled by
the filing of a motion under Rules 59(e) or 60(b) within 28 days of the entry of
judgment (so, in this case, by August 27). But Mr. Gomez-Alvarezs motion to
reconsider was deposited in the prison mail system on August 29, thirty days after
judgment. Therefore, the motion to reconsider did not toll the September 30 appeal
deadline, and the October 28 notice of appeal was untimely as to the denial of the
2255 motion.
In contrast, the notice of appeal was timely filed with regard to the district
courts decision on the motion to reconsider. To appeal that decision,
Mr. Gomez-Alvarez must secure a COA, requiring him to show that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the

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district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473,
484 (2000).
Jurists of reason would not find it debatable whether the district court was
correct in its procedural rulings. The district court employed the procedures set forth
by this court to determine whether it had jurisdiction to decide any of the issues
presented by the Motion to Reconsider Memorandum and Order. The portions of
the filing that attacked the validity of Mr. Gomez-Alvarezs sentence and re-argued
claims he had made previously under 2255 inarguably were subject to the
restrictions on second or successive 2255 motions. See Gonzalez v. Crosby,
545 U.S. 524, 531-32 (2005); United States v. Nelson, 465 F.3d 1145, 1148-49
(10th Cir. 2006). Accordingly, the district court lacked jurisdiction to consider those
portions of the filing, and no reasonable jurist could debate the decision to dismiss
them. See Cline, 531 F.3d at 1251-52. Further, the portions of the filing that
arguably attacked the validity of the 2255 proceeding were meritless. No
reasonable jurist could debate the decision to deny those portions of the filing or, in
the alternative, to dismiss them.
Mr. Gomez-Alvarezs motion for leave to proceed without prepayment of fees
and costs is granted. The application for COA is denied, and this matter is dismissed.
Entered for the Court

ELISABETH A. SHUMAKER, Clerk

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